Free Software Matters:
Microsoft Before the Earthquake

Microsoft is continuing its charm offensive against free software. Last
month we were merely a threat to the American Way of Life. This month, it
turns out, we are ``a cancer.'' That, at any rate, was the conclusion Steve
Ballmer offered one of the leading daily newspapers in the US.

The situation for Microsoft is growing serious. Increasingly hyperbolic
rhetoric is not by itself a good public relations strategy. In the weeks
preceding the release of an opinion by the United States Court of Appeals in
Washington on Microsoft's appeal of the order breaking it up for antitrust
violations, aggressive and violent rhetoric directed against a competitor has
some serious costs, to say nothing of what Microsoft loses by appearing
ridiculous.

But Microsoft is not improvising this barrage of baloney. It is proceeding
on the basis of a large and expensive plan drawn up by one of the public
relations firms to which Microsoft pays many millions a year. That plan
includes not only this week's comments about ``cancer,'' but also the release
of a Microsoft FAQ about the GPL, which is now available at www.microsoft.com/business/downloads/licensing/Gpl_faq.doc

As someone who frequently answers questions about the GPL, I'm not
surprised to find that Microsoft doesn't do a very good job. In fact, asking
Microsoft to explain the GPL is a little like asking Joe Stalin to explain the
US Constitution. Microsoft's document is designed to emphasize that ``the GPL
is a complicated agreement.'' According to Microsoft, ``no responsible
business should use GPL software without ensuring that its lawyers have read
the license and explained the business' rights and obligations.'' Note that
this says one shouldn't even use free programs without paying your
lawyer to read the license. I wonder if Microsoft is thinking of publishing a
document urging you to consult your lawyer before clicking your acceptance of
the next Microsoft EULA.

Not only does Microsoft want to establish a false vision of the GPL's
complexity and dangerousness, it wants of course to obscure the central fact:
that the GPL is intended to create and preserve freedom. ``Even limited or
relatively obscure uses,'' Microsoft says, ``(e.g., including a few lines of
GPL code in a commercial product or linking directly or indirectly to a GPL
library) may have a dramatic effect on your legal rights and obligations.''
Of course, including a few lines of Microsoft source code in your commercial
product would have a dramatic effect on your legal obligations, too: you'd
soon be looking at a Microsoft lawsuit for trade secret misappropriation and
copyright infringement. We almost always let you do things they absolutely
prohibit. That's why we must be wrong.

Everything Microsoft wants to make very complicated is indeed pretty
simple: You can use GPL'd code however you want, but don't try to reduce the
rights of others in the final product below the rights we gave you in the
GPL'd software you used. Microsoft says that means forcing you to give your
intellectual property away. We say it means that if you use free components
in work you distribute to others, you should make it possible for those others
to share and share alike. But you never have to use free components if you
don't want to, and you can use your own modifications to GPL'd code without
having any obligation to anyone at all, so long as you don't distribute.
Proprietary applications can be combined and sold along with a GPL operating
system. Even if you never reuse GPL'd code, you can learn from it how to do
almost anything computers can do, and then go write programs of your own which
you can license however you want. We think that helps everyone, at every
level of commitment to freedom, have better software.

Microsoft's GPL FAQ isn't going to have much influence with one of the
communities it's aimed at: software developers. Independent developers are
more likely to consult the GPL FAQ at www.gnu.org: why ask Napoleon Bonaparte
to explain the First Amendment? But Microsoft is also aiming this phase of
its public relations war on free software at corporate bigshots, because a
large strategic crisis is looming.

The economics of the palmtop market are about to change drastically, as
global consumer electronics firms release palmtop products that compete with
established devices sold at high markups only possible for proprietary
technology. Prices are going to drop sharply; thus the idea of using free
software for all but the top layer of software in palmtop devices is
overwhelmingly attractive. Microsoft will have trouble remaining in the
appliance market once manufacturers have learned that the GPL doesn't prevent
them from putting a thin proprietary layer on top of a GNU/Linux system and
embedding that combination in their hardware. They will get the superb
reliability of free software, and a global codebase, at zero marginal cost and
low fixed cost. Windows CE and all follow-ons will be dead, and Microsoft
will be excluded from the smallest computers that do real work, which is where
the future of the industry always lies. Checkmate.

So Microsoft is addressing its FUD about the GPL to the highest leadership
of major global corporations, companies who put their nameplates on the
electronics of daily life. Microsoft is trying to convince them not to use
free software in their appliance products, by claiming it's murky, risky,
difficult, arcane. But freedom is simple, as the appliance makers are going
to see in the end, with their eyes firmly on the bottom line. An earthquake
in the industry is coming: Free Software Matters.

*Eben
Moglen is professor of law and legal history at Columbia University Law
School. He serves without fee as General Counsel of the Free Software
Foundation. You can read more of his writing at moglen.law.columbia.edu.